and it is not enough to refer to the provisions of a particular statute.1 And a charge may be stated in the alternative, if each alternative constitutes an offence for which the thing is forfeited.2 The process in admiralty, which follows the libel, is intended, as at common law, to call the defendants into court to answer the plaintiff, or to arrest and hold them personally, or to attach their property and make it responsible for the debt. There is, however, one very important difference between admiralty and common law; it is that admiralty has a proceeding in rem, in civil, though not in criminal cases, which is unknown at common law. This undoubtedly arose from the frequent necessity of action in courts of maritime jurisdiction in reference to property, as ships or cargo, when the owners were either unknown or were out of the reach of the court. Whatever be its origin, we have no doubt that it extends to all property or the proceeds of property upon which a maritime claim may be made by the law of admiralty or by a local law, but that the right to proceed in personam exists concurrently with the other, and either may be used at the election of the libellant. 1 The Sch. Hoppet v. United States, 7 Cranch, 389. 2 The Emily, 9 Wheat. 381. CHAPTER III. OF MESNE PROCESS. SECTION I. OF THE PROCESS OF ARREST OF THE PERSON OF THE DEFENDANT. THE general power given by the rule we have previously cited (page 677) is limited by the subsequent rule passed at the December Term, 1850,1 which provides that "imprisonment for debt on process issuing out of the admiralty court is abolished in all cases where, by the laws of the State in which the court is held, imprisonment for debt has been or shall be hereafter abolished upon similar or analogous process issuing from a State court." This rule has, however, been considered as applying only to cases where by the State laws imprisonment for debt is absolutely abolished, and not where it is merely modified and restricted.2 If the sum exceeds five hundred dollars, no warrant of arrest 1 10 How. 2 In re Freeman, 2 Curtis, C. C. 491. This was a hearing upon a rule against the marshal calling on him to show cause why he had not levied an execution on the body of a debtor. The execution was issued on a decree in admiralty. The marshal set up in defence the United States statutes of 1839, 5 U. S. Stats. at Large, 321, and of 1841, 5 U. S. Stats. at Large, 410, and the act of Massachusetts of 1855, entitled “An Act to abolish imprisonment for debt, and to punish fraudulent debtors." Mr. Justice Curtis doubted whether the adoption by congress of prospective legislation by the States was constitutional, but held that congress had adopted merely laws abolishing imprisonment and not laws modifying it, and that the law of Massachusetts fell within this latter class. The case of Hodge v. Bemis, U. S. D. C., Northern District of New York, 12 Law Reporter, 470, and the cases of Gardner v. Isaacson, Abbott, Adm. 141, and Gaines v. Travis, Abbott, Adm. 422, to the same effect, were decided before the additional rule was passed. of either person or property can issue unless by the special order of the court upon affidavit or other proper proof showing the propriety thereof.1 SECTION II. OF THE PROCESS OF ARREST WITH THE CLAUSE THAT IF THE PARTY CANNOT BE FOUND, HIS GOODS AND CHATTELS MAY BE ATTACHED TO THE AMOUNT SUED FOR. This form of process applies only to the case where the party cannot be found. It has therefore been deemed necessary in the District of Massachusetts to provide for the case which may arise in consequence of the rule of the supreme court of 1850, relative to the arrest of the person of the defendant, and a rule was passed on the 27th of June, 1855, providing that where the defendant could not be legally arrested the mesne process might be a warrant to attach his goods, etc., as in the supreme cour rule. This rule was made prior to the decision of Mr. Justice Curtis above referred to, and was probably made to meet the case of the defendant not being liable to arrest by virtue of the State law. The language of the rule is however sufficiently broad to cover all cases where the defendant cannot be legally arrested. The question as to the power of the court to grant an attachment of goods when the defendant was out of the jurisdiction, was elaborately considered in an early case as a new question, and the power was asserted by the supreme court, Mr. Justice Johnson giving the opinion. It has, however, been held that the 11th section of the Judiciary Act of 1789,3 which provides that: "No civil suit shall be brought before either of said courts (the district and circuit courts), against an inhabitant of the United States, by any original process in any other district than that whereof he is an inhabitant, or in which he shall be found at the VOL. II. 1 7th Admiralty Rule. 2 Manro v. Almeida, 10 Wheat. 471. 58 time of serving the writ," applies equally to the suits in admiralty as to those at common law. But we do not consider this decision to be correct, and have no doubt but that a person who resides out of a certain district, may be sued in admiralty in that district if he has property there which can be there attached. 1 Wilson v. Pierce, U. S. D. C., California, 1852, 15 Law Reporter, 137. The case of Manro v. Almeida, 10 Wheat. 473, is explained on the ground that the defendant in that case was an absconding debtor and an inhabitant of the district in which the suit was brought. The decision in the case of Wilson v. Pierce, was given by Mr. Justice Hoffman, and is of marked ability, and fully discusses the previous decisions. But we do not consider it as sound in principle, and shall briefly consider some of the objections to it. In the first place is a suit in admiralty a civil suit within the meaning of that term in the 11th section? We are clearly of the opinion that it is not. The two sections immediately preceding the one in question provide for the jurisdiction of the district courts in civil causes of admiralty and maritime jurisdiction, and in some other peculiar cases. The 11th section, on the contrary, provides in the beginning that the circuit courts shall have original cognizance, concurrent with the State courts, "of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, etc." Concurrent jurisdiction with the district court is also given of crimes and offences cognizable therein, and it also provides that "no person shall be arrested in one district for trial in another in any civil action before a circuit or district court." Then follows the clause which we have cited in the text. It is thus evident, we think, that this clause was confined solely to the subjects embraced in the first part of the section, viz.: "suits of a civil nature at common law or in equity." And this position we think is clearly supported on authority. It is true that the case of Manro v. Almeida, is strictly an authority only to the point that an attachment will issue when the party has absconded from the country, and has goods within the jurisdiction of the court. But that the same rule applied to the case in question was never doubted until the decision of Hoffman, J. The point arose in Clarke v. New Jersey Steam Nav. Co., 1 Story, 531, where a corporation doing business in New Jersey was sued in the Rhode Island district and their property in that district attached. Story, J., who was on the bench when the case of Manro v. Almeida was decided, said: "Neither has it been doubted that the process of attachment well lies in an admiralty suit against the property of private persons whose property is found within the district, although their persons may not be found therein, as well to enforce their appearance to the suit, as to apply it in satisfaction of the decree rendered in the suit. Ever since the elaborate examination of this whole subject in the case of Manro v. Almeida, this question has been deemed entirely at rest." The facts were the same in New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, and it is somewhat singular, that, if the objection taken by Mr. Justice Hoffman is valid, the point should not have been noticed either by court or counsel, or by the three judges who dissented. See also Bouysson v. Miller, Bee, Adm. 186; King v. Shepherd, 3 Story, 349. SECTION III. OF FOREIGN ATTACHMENT. The second admiralty rule also provides that the warrant of arrest may contain a clause that if the defendant cannot be found, "his credits and effects to the amount sued for in the hands of the garnishees named therein may be attached." The process of foreign attachment in admiralty is governed by its own rules and principles, and does not depend on, and is not derived from, the custom of London, or the local laws of the different States.1 Some question has been made whether process of foreign attachment can issue when the defendant is not an inhabitant of the district, but for the reasons already stated we are clearly of the opinion that a suit may be brought in the district court where the property is." By the thirty-seventh rule of the supreme court, the garnishee is required, in cases of foreign attachment, "to answer on oath or solemn affirmation, as to the debts, credits, or effects of the defendant in his hands, and to such interrogatories touching the same as may be propounded by the libellant; and if he shall refuse or neglect so to do, the court may award compulsory process in personam against him. If he admit any debts, credits, or effects, the same shall be held in his hands liable to answer the exigency of the suit." It has been held that the warrant of arrest must contain a citation to the garnishee commanding him to appear, and that it is not sufficient to serve upon him a copy of the process, containing the foreign attachment clause without a citation.3 1 Manro v. Almeida, 10 Wheat. 473. 2 See ante, p. 686. 3 Smith v. Miln, Abbott, Adm. 373. The defendant and the garnishee were both defaulted, and on an execution being issued against the "credits and effects" in the hands of the garnishee, he appeared and moved that all proceedings in relation to him be set aside for irregularity. And the court ordered it to be done for the reasons stated in the text. This case was decided in 1848, and in 1858 a somewhat similar question came before the district court in Massachusetts. Shorey v. Rennell, Boston Courier, |